HIGH COURT OF LESOTHO
NATIONAL PARTY 1st APPLICANT
NATIONAL EXECUTIVE COMMITTEE 2nd APPLICANT
& 314 OTHERS RESPONDENTS
by the Honourable Mr. Justice W.C.M. Maqutu On the 26th October 2006
of the application
the 25th August 2006 at 1.30 p.m, Mr. Thoahlane filed an urgent
application accompanied by a Certificate of Urgency made pursuant
Rule 8 (22) © of the High Court Rules 1980. The reasons for
urgency which appear in Mr. Thoahlane's certificate are the
is a likelihood that respondents will hold an unlawful Special
General Conference slated for 26th
August 2006 to the extreme prejudice of the applicants.
such meeting proceeds, it will cause chaos and anarchy within the
applicants' leadership as there will be two National Executive
Committees in force.
is a likelihood that members of the 1st Applicant will not take the
conference lightly and will resort to violent behaviour
to stop it
3.15 p.m, Mr. Thoahlane appeared before me to move an ex parte
application for an interim order stopping the conference from
proceedings as part of a rule nisi with a return date. I expressed
my dissatisfaction that this interdict and the declaratory
were being sought less than 24 hours before the conference was
scheduled to take place. This was particularly disturbing
the applicants became aware of respondents' desire to hold a special
general conference more than a month before that
there was no doubt that the court's intervention was in my view
unavoidable. I felt even if it was so, it was my
duty to lessen the
inconvenience this remedial action might cause. Therefore I wanted
the respondents to be heard before I dealt
with the application for
the issue of a rule nisi. I had to stop the special conference of
respondents until I heard the respondents.
Consequently, I made the
this application be served on all respondents that can be found
today the 25th August 2006 and tomorrow the 26th August 2006
wherever they can be found.
respondents are restrained from proceeding with the Special General
Conference until this court hears the application for
the issuing of
the rule nisi and ancillary prayers at 4.30 p.m on the 26th August
that have been served should appear before court to make submission
before the court
issues the appropriate order that might be found practical.
office of Messer K.M. Chambers is directed to assist the Deputy
Sheriff to serve this application on respondents.
the 26th August 2006 at 4.30 p.m, the Court convened to hear the
application. Mr. Thoahlane for applicants was before court.
were more than one hundred people before court - apparently as
spectators. The following respondents admitted being served
the application and court order between 7.00 a.m and 9.00 a.m on
the 26th August 2006:-
Nyeoe 1st respondent
Qamo Molapo 73rd respondent
Letsoela 84th respondent
Ramarothole 120th respondent
Lerotholi 128th respondent
Mocheko - who was not a respondent.
was a return of service that showed that all respondents were
served. The above-mentioned respondents told the court that
wanted to have their own legal representation and consequently they
were not in a position to make any submissions. Mr.
applicants said he had no objection to a postponement of the matter
to enable respondents to find counsel provided
there is a temporary
interdict against the holding of the special general conference.
Thoahlane said there is a rumour that the conference is proceeding
contrary to the court's order. I told him that nobody
would dare do
that because I would deal with such a person harshly. However,
those people have a freedom of assembly, but they
could not purport
to hold a Basotho National Party meeting contrary to the court
order. I noted that in the crowd there appeared
to be people who
spoke as if they were some of the respondents. When I asked them to
come forward they refrained from doing
decided not to pursue this issue save telling them that the order I
was going to make would affect all respondents because
Sheriffs return states all the respondents have been served.
Consequently it was ordered:-
before court are given 10 days to find legal representation, if
they wish to oppose this application.
opposing papers should have been filed by the 11th September 2006
- if they wish to oppose this application.
should file replying affidavits by the 18th September 2006.
matter will be heard on the 22nd September 2006 at 9.30 a.m.
the respondents that appear in the Notice of Motion are restrained
from holding a conference of the Basotho National Party.
the 22nd September 2006, Mr. Thoahlane appeared for applicants. Mr.
Ntlhoki appeared for respondents. Mr. Thoahlane began
but during argument it emerged that the record was not properly
paginated. The court ordered:-
"As the matter proceeds, it is found the papers are not
properly-paginated. Parties are given 30 minutes to paginate. After
30 minutes, parties asked for more time. Matter postponed to the 26th
September 2006 at 9.30 a.m. Applicants are directed to pay
the day as they were by law the parties obliged to paginate the
the 26th September 2006, the parties appeared before court. It was
on this day that the matter was argued and judgment reserved.
this application the first applicant is the Basotho National Party
while the second applicant is its National
Committee of the Basotho National Party. This application has been
brought against 315 respondents.
order that applicants seek against the respondents is in the
following terms :-
with the ordinary rules pertaining to modes and periods of service
due to the urgency of the matter.
rule nisi be issued returnable on the date and time to be determined
by this Honourable Court calling upon the respondents to
(if any) why:-
respondents shall not be interdicted from proceeding with the
holding of the planned and/or envisaged Special General Conference
on the 26th-27th August 2006 at Lakeside Hotel as alleged per
Annexure "BNP III" pending the
finalization hereof in so far as they align with the 1st applicant.
said Special General Conference shall not be declared unlawful
and/or unconstitutional and/or of no force and effect thus
shall not be interdicted from using any colours, flags, emblems
and/or associate such conference with Basotho National
and/or alternate relief.
of suit against respondents' on an attorney and client scale the
one paying the other being absolved.
applicant shall not be allowed to join any other respondents who
align themselves with the said conference and/or remove
any of the
respondents due to the peculiar nature of events unfolding.
(i) The respondents/and or any of their agents shall not be
interdicted from interfering with the daily business of applicants
and/or occupation of the applicants' head office in any manner
whatsoever following on the unlawful CONFERENCE pending finalization
(ii) The respondents and/or anyone purportedly elected from such
conference be interdicted from holding himself out as a member
second applicant pending finalization hereof.
prayers 1, 2(a) and 2(f) and prayers 2(i), (ii) and 2(f) operate
with immediate effect as interim court orders and/or provisional
relief pending finalization hereof.
have already indicated that I did not grant any of the prayers as
prayed except interdicting the holding of the Special General
Conference until I had heard the respondents.
version of events
13. I was
not happy that applicants did not translate their annexures that are
in Sesotho as required by the rules. The constitution
is an official language. Consequently I felt, I should not be too
strict - as I was not at all inconvenienced. According
Matete the deponent of both applicants, this application is the
sequel of a letter dated 1st July 2006 marked "BNP
this letter are names of the respondents. The letter is in Sesotho.
As the matter is urgent, I have translated it
as follows because
Sesotho is my mother tongue:-
GENERAL CONFERENCE OF THE BASOTHO NATIONAL PARTY (BNP) We the members
of the Basotho National Party (BNP), who have the
right to attend the
annual general conference or the special general conference in terms
of Section 17(a) of the BNP Constitution,
who have signed our names
hereunder, basing ourselves on Section 17(c) (ii) of the Constitution
letter is a decision, it is not a request in terms of Section 17©
(ii) of the Constitution of the party which
refers to it.
that reason, the authors of the letter are advised to follow the
constitution in respect of the making of a request
not a decision
which already specifies the date and the venue of the
-conference. When they have made such a request, the
Committee will examine all the points in it and will give an
the present situation, the authors of the letter are advised not
to proceed with any arrangements whatsoever for the
referred to, because it is the Executive Committee that makes
arrangements for general conferences, in line
constitution of the party - which is being violated by the
decision of the authors of the letter.
appears from the letter that Khethisa Fuma and Thabang Tsira refused
to accept the letter but Mosonti who delivered the letter
at their feet. A similar letter "BNP V" was addressed to
all constituency and village committees of the Basotho
Party. It is also dated 4th August 2006. The complaint is still that
the authors of the letter "BNP III" are
decision not requesting for a Special General Conference. This
letter also states that some of the authors of
have no legal standing to sign the letter -and some claim to be
party officials when they are not. They are
going ahead although
they have been warned that what they are doing is illegal.
should be noted that applicants never translated the documents into
English as expected. Nevertheless as all parties are Sesotho
speaking including counsels, I have
decided to ignore this and get to the root of the matter. There is
clear evidence from "NEC T of applicant Moeletsi oa Basotho
dated 13th August 2006 that applicants were aware that they were
going to be defied and a conference was going to be held over
objections. They even wrote to the police on the 16th August 2006
asking the police to deny respondents a permit to hold
General Conference on 26th to 27th August 2006 - see"BNP VII".
It is for this very reason - I was not happy
that applicants sought
an interdict on the 25th August 2006 - less than 24 hours from the
commencement of respondents' Special
Applicants at paragraph 9.2 of their founding affidavit challenge
the very authenticity of the respondents' letter illegally
requisitioning the Special General Conference "BNP III",
because some signatories are purported to have signed a document
they are not entitled to sign it - while others have not even signed
it. The document "NEC VII" which states which
are not BNP officials and Village and Constituency Committee members
was not annexed to the
affidavit consequently respondents were unable to deal with it.
Consequently the court has to ignore it as if it was not
the replying affidavits. The court will only confine itself to the
genuiness of the signatures on "BNP VII"
and the authority
that those signatories had, to sign or ask for a Special General
queries of applicants are numbered ad seriatim at paragraph 9.1 of
their founding affidavit as follows:-
Special General Conference has not been convened by the National
Executive Committee of the BNP.
respondents have not followed the constitution in convening the
Special General Conference,
National Executive Committee of the BNP has disallowed the
Some of the signatories are not members of Constituency Committees
entitled to attend the annual general conference.
signatories of "BNP III" have dissociated
from it. (vi) Letters show some members were not nominated by
answer of respondents
say the matter is not urgent because letters were written to the
leader of the party and the executive committee inviting
them to the
Special General Conference. On the 7th July 2006 when invitations to
the leadership conference were issued, applicants'
was aware of arrangements of respondents to convene a Special
General Conference. Consequently "TNI"
of 7th July written
by the Secretary General states:-
"It is understood that these trouble-makers allege that they are
preparing for a Special National Conference. On this matter,
brought to your attention that it is only the National Executive
Committee which has the power to call an Annual National
the Special National Conference basing itself on the Constitution of
"TN2" dated 14th August 2006 written on behalf of
respondents - to which is annexed registered slips showing
letters sent on 17th August 2006 inviting the National
Executive Committee to the Special General Conference is referred to
support of the submission that there was no urgency in this
application. This letter of 14th August 2006 states that the BNP
headquarters was on the 26th July 2006 given the decision that the
Special General Conference be held. Jonathan Molapo the author
"After realizing that the National Executive. Committee of the
BNP is doing nothing to prepare for the holding of the conference
delegates who made the resolution (qeto) elected me and one member of
the committee often (10) representing constituencies
of ten (10)
Districts of Lesotho to make preparations for the holding of this
consequently say the applicants cannot at the last minute say the
matter is urgent and apply for an interdict against
the holding of
the Special General
From the 7th July 2006 up to the 24th July 2006, they did nothing.
What applicants do not disclose is that when they
this Special General Conference was to be held, applicants through
"TNI" convened a leadership conference
held on 12th August
2006 to mobilize their supporters to ensure that the Special General
Conference does not materialize. Furthermore,
on Sunday 13th August
2006, the leader and president of the BNP addressed a public meeting
urging people not to attend the Special
General Conference convened
through the Circular "BNP III". The respondents also query
the citation of some of the members.
say applicants have not exhausted internal remedies by checking the
list of signatories. Their public meeting of 13th
August 2006 and
the leadership conference of 12th August 2006 failed to mobilize
support, and applicants have failed to vet the
The courts are being approached on a speculative application at the
last minute. The applicants have not
joined the Commissioner of
of Societies and the Independent Electoral Commission.
50 copies of the application were run thereby making it impossible
to serve at least 260 other respondents. Consequently,
alteram partem rule has been breached. Only a few respondents were
served and could not at the last minute organize
representation. Applicants thereby extensively abused the court
process. The respondents queried the fact that the annexure
applicants were not translated into English as required by the Rules
of the High Court.
applicants are not being truthful when they say they learned of the
Special General Conference and the preparations that
were afoot from
the media. They knew of it and mobilized their supporters through
the leadership conference. The applicants were
misdirected in their
belief that they had the power to stop the Special General
Conference. Applicants have to know that the
Committee members "are all susceptible to be removed at any time
in the interest of the party".
say the Special General Conference is lawful contrary to what the
applicants allege for the following reasons:-
National Executive Committee of the BNP is not charged with the duty
to convene the Special General Conference,
Special General Conference has been convened lawfully in terms of
the Constitution of the BNP.
National Executive Committee of the BNP has no veto powers over the
convening of a Special General Conference,
people who query the right to participate in the Special General
Conference of the respondents in "NEC 3" "cannot
trusted" only Village Committees have records.
replying affidavit was bigger than the founding affidavit. It
included "NEC 7" which should have been in
affidavit. I informed applicants that they could not bring "NEC
7" so late when respondents could no more
deal with it. There
were affidavits and letters from Constituency Committees that showed
that at no time were elections of representatives
representatives authorized by Constituency Committees for the
Special General Conference. The election of these
people will be
dealt with later - sufficeth to say respondents thought Village and
Constituency Committees could just elect them
whenever they wished.
said TN2" was received after the 27th August 2006 -
consequently, there was no non-disclosure. Applicants through
4" demonstrated that some Constituency Committees had queried
the actions and the authority of some respondents
to hold the
conference. Applicants say it became a long and difficult process to
unravel issue of the legitimacy
signatories of "BNP III", because some committees were
dissociating themselves from it. The failure of respondents
to "NEC 8" dated 4th August 2006 made applicants to believe
the respondents might desist from holding the conference.
V" a circular to all Constituency and Village Committees called
for an answer which never came.
analysis of what happened
following facts are clear:-
applicants in my view delayed unnecessarily in bringing this
application. I told them so during argument. Bringing this
application less than twenty-four hours before the commencement of
the conference was calculated to create chaos.
is no doubt that respondents believed they could just ignore
applicants and have their Special General Conference. They
that the chairman and secretaries of constituencies received
V" dated 4th August 2006 - see paragraph 10 of respondents'
Respondents believed they were masters because the National Executive
Committee "second applicant is subordinate to the
the constitution of the first applicant the court will find that it
is not one of the functions of first applicant
conferences, least of all a Special General Conference .... a two
thirds majority of delegates who are entitled to
attend the Annual
General Conference can. Such conference is above second applicant
(The National Executive Committee) .... Moeletsi
oa Basotho, by the
time the article was published, second applicant was aware already of
the intended conference and was busy trying
to stop it but to no
avail". This quotation comes from respondents' affidavit.
was puzzled by the argument of the respondents. If I understood the
argument, the National Executive Committee
BNP is not its leadership. Any people who consider themselves to be
two thirds of the people entitled to sit at an Annual
Conference can do as they please. I asked myself how the oath in
paragraph 6 of the Constitution can have any meaning if
the BNP does not reside in the committees. I quote the oath:-
"I hereby solemnly affirm ...... to abide by the Constitution of
the Basotho National Party. I will always give my unflinching
for the party and its leadership and I pledge myself never to
publicly or secretly disown, criticize or refute any official
policy anouncements and/or actions".
If the expulsion of a member can be done by the National Executive
Committee of the BNP, then it probably is the mind and
hands of the
BNP -: but I could not be sure. Paragraph 7© (iii) and (iv):-
member may be expelled from the party if:-
in the opinion of the National Executive Committee it is not in the
interests of the party that he should continue as
(iv) He fails without good reason to appear before his Village
Committee if he is
summoned three times".
The role of the National Executive Committee and the Leader of the
BNP surfaces at paragraph 8 of the Constitution of the BNP.
appoints the Disciplinary Committee and may even dismiss it with the
advice of the National Executive Committee. Its main
at paragraph 11 of the constitution. The Annual/Special Conference
is the supreme organ below which is the National
under which are other committee in descending order, at the bottom
of which is the Village Committee.
proper reading of the Constitution shows that in terms of the BNP
12(a) The Village Committee is elected annually "under the
supervision of the locality committee.
13 (a) The Locality Committee is elected by Village Committees under
the supervision of the Constituency Committee.
14(a) The Constituency Committee is elected annually by Locality
Committees and shall operate under the supervision of the National
15(a) The National Executive Committee shall be elected by secret
ballot by the annual conference.
(b)(iv) Its functions shall be to supervise the delegation or
representation of party meetings, assemblies, or any other matters
which might have bearing on party policy.
seems to me that the National Executive Committee is in charge of
the BNP. As more fully appears in Clause 15 (b)
functions shall be to supervise the delegation or representation of
party meetings, assemblies". It seems clear
respondents have not read the constitution properly. Conferences and
assemblies do not organize themselves. They are
organized under the
supervision of the National Executive Committee. It also supervises
delegation and representation at party
meetings and assemblies.
and balance of convenience
the purpose of this application is not only to ask respondents to
act constitutionally but also seeks to interdict them
the Special General Conference unconstitutionally.
Prest in The Law and Practice of Interdicts on page 1 says:- "Of
all legal remedies, interlocutory interdicts are the most
the most drastic, often the most attractive, and potentially, the
speediest of remedies".
have to add that this is the most abused procedure which is the most
inconvenient and frustrating procedure to the respondents
sometimes to the courts as well. This is because the courts are
often approached ex parte. Beck J in Republic Motors v Lytton
Service Station 1971 (2) SA 516 at 518 FH said of interdicts that
are granted in the interim :-
"The procedure of approaching the court ex parte for relief that
affects the rights of other persons is one which, in my opinion,
somewhat lightly employed. Although the relief that is sought when
this procedure is resorted to is only temporary in nature,
necessarily invades, for the time being, the freedom of action of a
person or persons who have not been heard and it is, to
that extent a
negation of a fundamental precept of audi alteram partem. It is
accordingly a procedure that should be sparingly
carefully disciplined by the existence of factors of such urgency, or
well-grounded apprehension of perverse conduct
on the part of the
respondent who if informed before-hand the course of justice is in
danger of frustration unless temporary curial
intervention can be
Coetzee J complained of urgent applications about liberties legal
practitioners take in bringing urgent application (Versaardigers
Markin & Another 1977 (4) SA 135 at 136G):-
"These practitioners then feel at large to select any day of the
week and any time of day (or right) to demand a hearing.
quite intolerable and is calculated to reduce the good order which is
necessary for the dignified functioning of the courts
brought this application at 3.15 p.m when the court was about to
close at 4.30 p.m on a Friday. The court which considered
urgent, in order to avoid disorder and breaches of the peace, was
obliged to make an order inviting respondents to
come to court the
following day which was a Saturday, and to grant a temporary
interdict without first hearing respondents.
was not a court day. This application was made on Friday less than
15 hours before the time the respondents had stated
in their notice
"BNP III" as the starting
their conference. Since applicants had known this more than 31 days
before they moved the application, this court took
the view that
applicants had shown no consideration for the court and the
respondents. It left me in no doubt that the applicants
had not acted
fairly and responsibly.
this court at the end of this application had found the fear that
respondents' Special General Conference was unconstitutional
baseless - this would have created an embarrassment. The reason
being that when the interdict was granted on 25th August 2006
court would have been misled by a last minute application and
incorrect averments. The court's order as to costs would
compensated the respondents who would have been restrained from
doing the right thing at the right time and at great
costs to the
delegates to the Special General Conference.
balance of convenience which is built into interdicts is an
endeavour to take the best and most practical step to
the apprehended or continuing harm with the least possible harm
through an interim order before the merits of an interdict
application are heard. As Prest on The Law and Practice of Interdicts
observes at page 68:-
"The focus of the irreparable injury doctrine then was shifting
from unnecessary equitable meddling with courts of law to
unnecessary relief pending ... consideration of the merits".
approach of the matter is that forbidding unconstitutional behavour
is rather a measure which does not stop a party from doing
considers necessary - but rather to do it in a procedurally correct
way. The relief sought - if justified is in effect
measure - because once correct procedures are followed the other
party will still get its Special General Conference.
In other words
courts should not and must avoid as much as possible in meddling in
the affairs of voluntary organizations - for
these should be dealt
with by the voluntary organizations themselves, in terms of their
Therefore in this case as Prest on The Law and Practice of Interdicts
at page 69 observes:-
"The balance of convenience is the test whereby a court
considers the potential injustice to the plaintiff if the injunction
is withheld and the potential injustice to the defendant if the
injunction is granted. The course to be taken is that which would
involve the least risk of ultimate injustice, having regard to the
actual and potential rights and liabilities of the parties on
was very unhappy to stop a Special General Conference at the last
minute while parties were preparing to be heard on the merits
interdict. It seemed to me that the maintenance of law and order was
an issue which could not be understated, because
general conference could easily be held if the interim interdict
should not have been granted. Lives and property
that might be lost
or destroyed could not be replaced. This situation was comparable to
that of Tshabalala v Minister of Health
& Ors 1987 (1) SA 513 at
523 EF where Goldstone J said:-
"The balance of convenience, in my opinion, is heavily on the
side of the second applicant. If he is not temporarily reinstated,
might irrevocably lose the opportunity of qualifying as a nurse, .. I
can see little, if any prejudice to any of the respondents
event of the second applicant being granted the interim relief he
the case before me, the respondents could be partly compensated
financially by an order of costs after the merits had been
of fact in this Interdict Application
interdict applications the approach is generally to deal with it on
on The Law and Practice of Interdicts at page 6 observes:-
position is often further aggravated by the urgency of the matter. In
applications for interlocutory interdicts, it is rare
situation is other than urgent, where judgment cannot be reserved.
This means that the court has limited time for deliberation
adjudicate the disputed facts on the papers,
even without the benefit of full argument from counsel, and without
an opportunity for mature reflection. A decision must
immediately, frequently in situations of great complexity and where
considerable prejudice could occur if a wrong decision
had to determine whether this was a dispute that could not be
resolved on the papers. I came to the conclusion that the dispute
needed no viva voce evidence. The papers showed clearly where the
dispute is, and I could make my own calculations and determine
whether the required numbers of competent people had asked for a
Special Conference. The constitution was sufficiently clear
found it was all a matter of constitutional interpretation. I was
adequately addressed and I could read the papers filed of
come to a decision. The factual disputes were not material. In any
event none of the parties asked for the hearing
of viva voce
evidence. Both counsel confidently argued the matter on the papers.
two thirds of appropriate signatures on "BNP III"?
Special General Conference has not been convened at the request of
at least ten members of the National Executive Committee
of the BNP.
It has been convened by people who claim to be "two thirds of
the people qualified to attend the ordinary annual
court made a rough calculation of the number of delegates that would
attend an annual general conference. The task was not
forward because some of the members of the National Executive
Committee are also Members of Parliament. The court found
general conference would be attended by about 426 delegates. Two
thirds of those delegates would be about 284 delegates.
are 287 signatures on "BNP III" which exceeds the two
thirds of delegates by 3 delegates. I noted that there are
printed names - the most significant being all the 9 delegates
allegedly representing Maseru Constituency Number
Maama Constituency Number 40. I noted this without making any
decision - the reason being that as Mr. Ntlhoki argued, it
possible that these people have printed their names or ask others to
do so for them.
terms of Section 17(a) of the Constitution of the BNP the Annual
National Conference shall be composed of the following: -
(i) National Executive Committee 16
(ii) Constituency Chairman 80
(iii) Constituency Secretaries 80
(iv) Constituency Treasurers 80
(v) National Youth Leader 1
(vi) National Women's Leader 1
(vii) Constituency Representatives 160
(viii) Members of Parliament __8 426
constituency is automatically represented by three committee members
- namely the chairman, secretary and treasurer. It follows
these 240 Constituency Committee members are ex officio constituency
representatives at the Annual National Conference.
As already stated
I will assume that on "BNP III" all the chairmen,
secretaries and treasurers on "BNP III"
are the lawful
Constituency Committee members of the Basotho National Party.
following Constituency Committees have not signed "BNP III
is clear that thirty three Constituency Committees have not
associated themselves with "BNP III". It follows that
secretaries, treasurers and chairmen from constituencies have not
signed "BNP III". Therefore that two constituency
representatives from any of these 33 constituencies could not be
lawfully elected without the supervision of the 33 Constituency
Committees that have not signed "BNP III". The 56
constituency representatives "so called" who signed "BNP
III" did so without the requisite constitutional power.
am correct the Annual General Conference should have about 426
members. Two thirds of this number is about 284 people. "BNP
III" is signed by 287 people. If these 56 constituency
representatives who are not supported by Constituency Committees
subtracted from the 287 signatories, the number of signatories drops
to 231 which is far less than the 284 members required
to make the
two thirds majority.
problem is even greater. Constituency representatives can only be
part of a specific Annual General Conference. No constituencies
could elect representatives even before a specific individual
conference has been convened - that being the case all the 154
elected representatives of constituencies have to be removed from
the 287 signatories of "BNP III". This leaves only
signatories who might belong to constituency committees as Ex
Officio members of the Annual General Conference. These 133
are less than one third of the total membership of the Annual
General Conference of 426.
seems to me undoubtedly clear that using any method of calculation -
"BNP III" was not signed by two thirds of
entitled to attend the Annual General Conference. It is a flawed
Special General Conference was properly convened
argument of Mr. Ntlhoki for respondents is that it is not the
function of the National Executive Committee to
the Annual General Conference or the Special General Conference. It
appears respondents are wrong because among the functions
National Executive Committee of the BNP in terms of Section 15(b)
(iv) is to supervise the delegation or representation
meetings and assemblies generally. Even if this section did not
exist, it would be absurd that annual and special general
could not be the responsibility of anybody.
seems all the elected representatives of constituencies have to be
elected for a specific conference in terms of Section 16(a)
These respondents signed "BNP III" even before a specific
conference had been convened - were not delegates.
Executive Committee of the BNP has not supervised their delegation
to the conference. It is not even claimed that
some of them were
elected by constituencies at all or under any supervision. It was
suggested by Mr. Ntlhoki that they could
be elected by Village
Committees - this is wrong, constituency elections are conducted by
Clearly their subscription or signature of "BNP III" was
special General Conference or an Annual General Conference in order
to operate lawfully must be duly constituted. It must duly
and presided over by the proper constitutional authorities. That
means it must be presided over by the president in terms
1.2 of the Constitution. The Secretary General must be present to
keep minutes in terms of Section 5.3 of the Constitution.
the Secretary General of the BNP may not be sidelined because he and
the Chairman of the party are responsible for the
the party in terms of Section 3.3 of the Constitution.
was therefore unthinkable to have a Special General Conference for
which the Secretary General is not responsible because Section
of the Constitution provides the following about the Secretary
shall be responsible for all party affairs and secretariat under the
direction of the President and the National Executive
is clear therefore that the Special General Conference has to
involve the National Executive Committee in its planning and
sitting. Two thirds of the people qualified to attend the annual
conference as delegates have to request the National Executive
Committee to convene the Special General Conference in terms of
Section 17 © (ii). There are legal remedies if the National
Executive Committee members do not do so.
signatories of "BNP IIP (even assuming all constituency
chairmen, secretaries and treasurers who signed were no queried)
not constitute two thirds of those entitled to be delegates of the
Annual General Conference. They are only 133 including
parliament. This is a major flaw in "BNP III". That being
the case less than one third of
people who ought to attend a duly convened annual general conference
of the BNP
central argument advanced by Mr. Ntlhoki for the respondents was
that two thirds of the people delegated in terms of the BNP
Constitution to vote at an Annual Conference of the BNP could
convene a Special General Conference of the BNP without asking
the permission of the National Executive Committee of the BNP. Mr.
Ntlhoki argued that the use of the word "request"
Section 17 of the Constitution of the BNP, should not be interpreted
literally. The word "request" means to ask
the National Executive Committee to hold the Special General
Conference, but the court should bear in mind the
BNP Constitution, Mr. Ntlhoki argued does not state from whom the
request to hold a Special General Conference should be made.
two thirds of the members entitled to vote at an Annual General
Conference decide to have a Special
Conference, it has to be held. The Constitution does not say who
should convene the Special General Conference. It was for
that respondents decided to hold a Special General Conference of the
BNP, choosing the date, time, venue and agenda
without reference to
the National Executive Committee of the BNP - and merely informed
them of what they had done.
asked Mr. Ntlhoki how an Annual General Conference of the BNP is
convened, he said it is convened through notices issued by
Secretary General of the BNP although the Constitution is silent on
the issue. As I have already said, the BNP Constitution
is not as
silent as I am being persuaded to think - in respect of the
functions of the Secretary General and the National Executive
Committee. What I am called upon to do is by no means easy. I am
being asked to do two things that are sometimes contradictory.
being asked sometimes to interpret the BNP Constitution literally,
at other times to interpret it in a purposive manner.
going into the merits in the case of Govender v Textile Workers
Industrial Union (SA) 1961 (3) SA 88 Wessels J dealt with
of a constitution on members of a voluntary association, he said:-
"Members are bound by contract to one another and the term
thereof are reflected by and enshrined in the constitution. It
follows that in construing the constitution of such an association,
the same principles of construction should be applied as in
construction of any other written instrument in terms of which
parties contract with each other. The constitution embodies
and conditions upon which members have agreed to become bound and to
remain associated for the purposes set out therein".
v Textile Workers Industrial Union SA (supra) at page 91 FG.
Govender v Textile Workers Industrial Union SA above the
constitution was slightly different from that of the BNP. Clause 9
(1) of that constitution had a provision to the effect that "Special
General Meeting shall be called whenever desired by
a majority of
the branch executive committee or upon a
signed by at least ten members". The Section of the BNP
Constitution in terms of which the respondents say they
Section 17 © (ii) which provides:-
"There can also be a special national conference which can be
convened at the request of at least ten members of the N.E.C
thirds of people - qualified to attend the ordinary annual conference
is a definite difference between a request and a requisition.
Paperback Oxford English Dictionary defines:-
An act of asking politely or formally for something. Requisition:- An
official order allowing the taking or use of property
Shorter Oxford English Dictionary defines:-
"Ask to be favoured with or given something".
is defined as:-
"The action of calling for something; a demand".
spirit in which a person requests for something or requisitions it,
differs. In a request, a person petitions for something,
requisition according to the same Shorter Oxford English Dictionary
it implies "The action or act of formally requiring
demanding a duty etc, be performed". My understanding is that
in both instances, a service is required. With a request
- what is
required is asked for politely and reasonably, while with a
requisition a service is demanded and has to be rendered
without wishing to know the problems the provider of the service
not think we can wish away the word "request" which
appears in the Constitution of the BNP. The reason is succinctly
expressed by Van Winsen AJA in South African Mutual Aid Society v
Cape Town Chamber of Commerce 1962 (1) SA 598 at 615D in the
"Where the parties have expressly agreed upon a term and given
expression to that agreement in a written contract in unambiguous
terms no reference can be had to surrounding circumstances in order
to subvert the meaning to be derived from a consideration of
language of the agreement only".
would seem to me that this method of going by what a constitution
states is not always satisfactory. In a constitution the
liberal, contextual approach is more appropriate. I therefore would
prefer what Rumpff CJ said Swart En 'N Ander v Cape
Fabrix (Pty) Ltd
1979 (1) SA 195 at 202 (the English translation):-
"What must naturally be accepted is that, when the meaning of
words in a contract have to be determined, they cannot possibly
cut out and pasted on a clean sheet of paper and then considered with
a view to then determining the meaning thereof. It is
that a person must look at the words used having regard to the nature
and purpose of the contract, and also the context
of the words in the
contract as a whole".
approach Section 17 © (ii) and read it within the context of
the BNP constitution as a whole, I find the word "request"
to be practical and meant to give the organizers of the Special
General Conference an opportunity to reflect and consult with
constituency, locality and village committees in organizing the
Special General Conference, so that - among other things
delegates can be elected. Whether I use the literal or the purposive
method of construction, the word request is still
the proper one in
its literal meaning.
seems to me that Bamford On Law of Partnership and Voluntary
Associations in South Africa 2nd Edition at page 121 is correct
logical where he says:-
"The management of an association's affairs is normally
entrusted to committees and sub-committees".
follows therefore that it is the National Executive Committee that
must call The Special General Conference. A group of people
do so - because that would create
can only do so if expressly and directly authorized by the
constitution or the situation calls for it.
committee fails to perform its functions, any member of the
association has a right to enforce any constitutional provision
is breached in order to compel the committee to take proper steps. -
See Ex-Parte United Party Club 1930 WLD 277 at page
Solomon J says the court may be invited to intervene if necessary.
If the National Executive Committee refuses unreasonably
to call the
Special General Conference as soon as possible then the respondents
have a right to ask for an order compelling the
Committee to perform their constitutional duty.
Relations between members of a voluntary organization inter se have
to be based on good faith and mutual consideration. See Rowles
Jockey Club of SA 1954 (1) SA 363 at 365. Consequently, Levy AJ in
Padayichie v Pauadai & Another 1994 (1) SA 662 found
where a Special General Meeting was to be called within 14 days that
had to be held within 14 days provided the convener is acting fairly.
However, Levy AJ added in Padayichie v Pavadai &
Another at page
"The conduct of the committee in calling a special general
meeting ... three months after requisition, ... to secure a hearing
of complaints before a special general meeting was a breach of its
duty to observe the fundamental fairness in the treatment of
have already said that the BNP constitution does not say special
general meetings should be requisitioned - but that two thirds
the members entitled to vote may request that a special general
conference should be held. I have already stated that the
Executive Committee has to accede to this request and as the manager
and administrative organ of the BNP - to call such
a special general
conference. Thus the National Executive Committee is obliged to do
this in a democratic set up. They have to
act in this way because
they themselves have been elected democratically – therefore
ought not to ignore a wish of the majority which is backed up by the
Constitution of the BNP.
members may not do as they please. The court has to interpret the
powers of the National Executive Committee of the BNP benevolently
and as widely as possible in so far as this is consistent with the
maintenance of order and the fair protection of the rights
the members of the BNP -including the minority. The problem courts
have is that they cannot run voluntary associations
nor do they have
the capacity to do so. This task has been given to the committees
and sub-committees of these organizations.
The reason being that as
Tindall J said in Goldman v Swede & Others 1930 WLD 216 at page
"The members elect the committee and they trust the committee
not to abuse its powers",
do not accuse the National Executive Committee of any abuse of power
or failure in the performance
duties. In any event self-help is not allowed. Furthermore, there is
nothing on the papers - that is alleged that tempted
seize the powers of the National Executive Committee of the BNP - nor
are there any grounds on the papers for this
court to interfere or
sanction any interference with its running of the BNP. Two thirds of
those entitled to do so, may ask the
National Executive Committee of
the BNP to convene the Special General Conference - but they may not
usurp this function of the
National Executive Committee of the BNP.
refuse to convene a Special General Conference
has already been stated that National Executive Committee was not
asked to convene a special general conference. The respondents
simply convened it. The assumption of the respondents was that
National Executive Committee of the BNP had no power to refuse,
under the BNP Constitution.
maintenance of law and order and respect for the rights of others is
the duty of the main committee of an organization. In
Sick Fund Society v Forrest & Ors 1956 (4) SA 519 the members
had asked for a special general meeting - which
the Board of
Management disallowed on grounds that what members wanted to do went
beyond what the constitution allowed. The Appellate
the Board was entitled to refuse to convene the special general
meeting. In that case the court held both the Annual
and the special general meeting had to be convened by the Board but
the agenda of the special general meeting
is at the request of
members while that of the Annual General Meeting is determined by
organizations have their own governments in terms of their own
constitutions. States also have their own constitutions
and organs -
of which courts are a part. Courts expect governance and order
through out society. They do not take kindly to misrule
Disorderly people who
ungovernable in voluntary organization can threaten public order and
thereby destabilize the state as a whole.
Denning MR said in K v Chief Constable of Devon an Conwall Ex-Parte
Central Electricity Board  QB 458 at page 471:-
"In deciding whether there is a breach of the peace or the
apprehension of it, the law does not go into the rights and wrongs
the matter, or whether it is justified by self-help or not ... If I
am wrong on this point, if there was here no breach of the
apprehension of it, it would give licence to every obstructer and
every passive resister in the land. He would be able
to cock and
snook at the law .... This cannot be. The rule of law must prevail".
other words, human rights must be respected. But that does not mean
dissatisfied people can use respect for human rights
as a means to
create anarchy to the detriment of the maintenance of law and order.
Political parties must stick to their constitutions
and always try
to act responsibly. If they
irresponsibly, they endanger their freedom which may have to be
curbed if it destabilizes society to its detriment.
have not gone deep into the merits. I have confined myself to
preliminary and procedural issues. I have not had to determine
whether the people on the "BNP III" are in fact members of
constituency committees. I have rejected "NEC 7"
irregularly and belatedly filed. Because of applicants' conduct,
respondents have not been able to comment on it. I did not
suspect the names of people that are printed on "BNP III",
these are few.
have no difficulty in rejecting the names of over 154 so-called
representatives of the constituencies because they were not
specifically elected for this particular Special General Conference
in terms of the constitution because the National Executive
Committee of the BNP has not been requested to convene a Special
General Conference and duly called for their election. There
therefore no conference for which they were elected to vote at. In
other words no group of people can call
Special General Conference and proceed to authorize the election of
constituency representatives. That is the job of the National
Executive Committee of the BNP.
follows in my view that the respondents have to go back to the
drawing board in order to organize the appropriate people and
structures to support their request for a Special General
this stage and on the facts before me, I am unable even to imagine
any of the respondents committing contempt of court because
have a right to assemble. What they could not do is to hold a
Special General Conference or Special National Conference
of the BNP
which this court has forbidden. Even if they had, such a meeting
should have been a nullity because it would have
unconstitutional. The onus of proof is on the person claiming
respondents held a Special General Conference of the BNP contrary
the court order. The court cannot deal with them without giving them
That being the case, the Committee of the BNP on "TN3" and
its election are non-events.
court has to have a definite allegation of a deliberate failure to
comply with a court order. In this last minute application,
reasons why a committee might have been elected are numerous. The
onus of proving contempt of court will be on the applicants
applicants feel bold to bring such an application - in the chaotic
situation applicants themselves created. If contempt
of court is
proved, and if respondents deliberately and in a definite way
displayed contumelia - this court has a duty to act
firmly on them.
have therefore to grant this application and make specific orders.
However, I am satisfied that applicants are not entitled
The reasons being:-
launched this application at the last minute for no discernible
reason to the inconvenience of over three hundred people.
papers were so mixed up and unpaginated that they created serious
problems for the court and the respondents.
is trite that a party has a duty to act expeditiously to abate a
nuisance and to protect his rights. Applicants were unreasonably
dilatory thereby bringing about a delay that is unconscionable.
They knew they were being defied unconstitutionally and failed
act to the prejudice of respondents.
read the papers filed of record and having heard Mr. Thoahlane for
applicants and Mr. Ntlhoki for respondents.
respondents be and are hereby interdicted from proceeding with the
holding of the planned and/or
Special General Conference or Special National Conference on the 26th
27th August 2006 at Lakeside Hotel as alleged in
III" in the name of the Basotho National Party the 1st
said Special General Conference or Special National Conference is
by this order of the court declared unlawful and unconstitutional
and a nullity.
are in respect of that Special General Conference or Special
National Conference interdicted from using the emblems
of the Basotho National Party.
by mistake and because the interdict of this court pendent lite
was unknown due to imperfect service or a misunderstanding
respondents were elected as members of the National Executive
Committee of the BNP - those respondents are interdicted
holding themselves out as the National Executive Committee of the
BNP as the
conference was null and void, by reason of the fact that it was held
contrary to the Constitution of the Basotho National Party.
will be no order as to costs.
Applicants : Mr. Thoahlane
Respondents : Mr. Ntlhoki
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law